Cooper, S. v. Armstrong World Industries, Inc.

J-A03033-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SANDRA COOPER, IN HER OWN RIGHT IN THE SUPERIOR COURT OF
AND AS ADMINISTRATRIX OF THE PENNSYLVANIA
ESTATE OF GENE M. COOPER

Appellant

v.

ARMSTRONG WORLD INDUSTRIES, INC.,
ALAN J. HAY, M.D.

Appellees No. 632 EDA 2015

Appeal from the Order Entered February 2, 2015
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): August Term, 2013, No. 02452

SANDRA COOPER, IN HER OWN RIGHT IN THE SUPERIOR COURT OF
AND AS ADMINISTRATRIX OF THE PENNSYLVANIA
ESTATE OF GENE M. COOPER

Appellant

v.

ARMSTRONG WORLD INDUSTRIES, INC.,
ALAN J. HAY, M.D.

Appellees No. 633 EDA 2015

Appeal from the Order Entered February 2, 2015
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 2452 August Term, 2013

BEFORE: GANTMAN, P.J., MUNDY, J., and DUBOW, J.

MEMORANDUM BY GANTMAN, P.J.: FILED JULY 15, 2016

Appellant, Sandra Cooper, in her own right and as administratrix of the
J-A03033-16

Estate of Gene M. Cooper, appeals from the orders entered in the

Philadelphia County Court of Common Pleas, which granted summary

judgment in favor of Appellees, Armstrong World Industries, Inc. (Appellee

AWI) and Alan J. Hay, M.D. (“Appellee Hay”). We affirm.

In its opinion, the trial court fully and correctly sets forth the relevant

facts and procedural history of this case. Therefore, we will only briefly

summarize them. In September 2003, a chemical spill occurred at Appellee

AWI’s plant in Lancaster, Pennsylvania. Gene M. Cooper (“Mr. Cooper”) was

an employee of Appellee AWI and one of the workers assigned to clean up

the spill. Mr. Cooper developed a cough and severe sinus pain immediately

after his involvement in the cleanup. Within several months of the cleanup,

Mr. Cooper began a cognitive decline.

When his cognitive issues interfered with his work, Appellee AWI

referred Mr. Cooper to Appellee Hay for an evaluation. After evaluating Mr.

Cooper, Appellee Hay contacted Mr. Cooper’s primary physician, who

ordered neurological testing to diagnose Mr. Cooper’s condition. Due to Mr.

Cooper’s substantial cognitive issues, Appellee AWI placed Mr. Cooper on

disability in May 2004. Over the next several years, Mr. Cooper’s condition

rapidly deteriorated. The court deemed Mr. Cooper a totally incapacitated

person in June 2006. As Mr. Cooper’s then court-appointed legal guardian,

Appellant subsequently placed Mr. Cooper in a full-time assisted living

facility. After multiple evaluations of Mr. Cooper by many different doctors,

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Mr. Cooper was diagnosed in November 2007, with work-related

encephalopathy with consequent dementia.

In December 2007, Appellant filed a worker’s compensation claim on

Mr. Cooper’s behalf, which asserted that Mr. Cooper had developed

encephalopathy with dementia after toxic overexposure at work. During the

course of the worker’s compensation case, Appellant requested Mr. Cooper’s

chemical exposure documentation from Appellee AWI. Appellee AWI

supplied some of the pertinent information, but it claimed the rest of Mr.

Cooper’s relevant chemical exposure documentation had been inadvertently

lost or destroyed during a move to a new building. Appellant learned for the

first time, in 2009, of Appellee Hay’s evaluation of Mr. Cooper in 2004. After

numerous additional evaluations of Mr. Cooper by doctors, Appellant learned

that Mr. Cooper’s prognosis was poor and his injury was the result of

“occupational solvent exposure.” In October 2011, Appellant learned from

an employee of Appellee AWI that Mr. Cooper’s chemical exposure

documentation was stored on Appellee AWI’s computer system.

In the worker’s compensation action, the court determined Mr. Cooper

suffered from toxic encephalopathy caused by chronic solvent and chemical

exposure and acute exposure to toxic chemicals while working at Appellee

AWI’s manufacturing plant. As a result, in 2012, the court awarded Mr.

Cooper compensation benefits, interest, attorney’s fees, litigation costs, and

medical expenses incurred for the treatment of his toxic encephalopathy.

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J-A03033-16

On August 22, 2013, Appellant filed a tort action against Appellees.

On October 9, 2013, Appellant filed an amended complaint, which raised

claims of fraud, conspiracy, recklessness, negligent infliction of emotional

distress, and intentional infliction of emotional distress. Appellee AWI and

Appellee Hay filed preliminary objections on October 28, 2013, and October

29, 2013, respectively. The court overruled both Appellees’ preliminary

objections on November 29, 2013. Appellee Hay then filed an answer and

new matter to Appellant’s complaint on December 30, 2013, and Appellee

AWI filed an answer and new matter on January 8, 2014. Mr. Cooper died

on February 5, 2014.

On October 22, 2014, Appellant and her children filed a wrongful death

and survival action against Appellees. On October 25, 2014, Appellant filed

a motion to consolidate the 2013 tort action with the wrongful death and

survival action pursuant to Pa.R.C.P. 213(e)(1), which the court granted by

order dated November 26, 2014.

On December 1, 2014, both Appellees filed motions for summary

judgment in the 2013 tort action alleging, inter alia, the relevant statutes of

limitation barred Appellant’s claims raised in that action. After Appellant

filed answers to Appellees’ motions for summary judgment, the court

granted summary judgment on January 21, 2015, in favor of both Appellees

on Appellant’s negligent infliction of emotional distress and intentional

infliction of emotional distress claims and Appellee Hay on Appellant’s

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recklessness claim. The court then granted summary judgment in favor of

Appellees on all of Appellant’s remaining claims in the 2013 tort action by

order dated January 30, 2015, and docketed February 2, 2015. On February

10, 2015, Appellant filed a notice of appeal from the court’s order granting

summary judgment in favor of Appellees. The court ordered Appellant on

February 11, 2015, to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b), and Appellant complied on March 2,

2015.

On May 17, 2016, we quashed the appeal, based on this Court’s

decision in Malanchuk v. Tsimura, 106 A.3d 789 (Pa.Super. 2014) (en

banc), which defined the order on appeal as a non-final order; that case was

then pending review before the Pennsylvania Supreme Court. In the wake

of our Supreme Court’s reversal, however, we promptly withdrew our

disposition and sua sponte granted reconsideration of this appeal on May 26,

2016. See Malanchuk v. Tsimura, ___ A.3d ___, 2016 WL 3022688 (Pa.

filed May 25, 2016) (holding: where court consolidates two actions pursuant

to Pa.R.C.P. 213, cases retain their separate identities and require distinct

judgments unless complete consolidation is achieved; complete consolidation

occurs only when both actions involve same parties, subject matter, issues,

and defenses; absent complete consolidation, judgment entered in one case

is final, and party is entitled to immediate appeal as of right). Because the

trial court had consolidated this 2013 tort action with a wrongful death and

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J-A03033-16

survival action that involves different parties and diverse claims, complete

consolidation did not occur. See Kincy v. Petro, 606 Pa. 524, 531, 2 A.3d

490, 494 (2010). Thus, Appellant is entitled to an appeal as of right from

the trial court’s order granting summary judgment in the present case, and

this appeal is properly before us. See Malanchuk, supra.

Appellant raises one issue for our review:

DID THE [TRIAL] COURT IMPROPERLY INTRUDE UPON THE
PROVINCE OF THE FACT-FINDER BY CONCLUDING THAT
THE COOPERS HAD NOT EXERCISED REASONABLE
DILIGENCE AND THUS RENDERING THE DISCOVERY RULE
INAPPLICABLE TO THE STATUTE OF LIMITATIONS FOR
FRAUD AND CONSPIRACY?

(Appellant’s Brief at 4).

Our standard of review of an order granting summary judgment

requires us to determine whether the trial court abused its discretion or

committed an error of law. Mee v. Safeco Ins. Co. of Am., 908 A.2d 344,

347 (Pa.Super. 2006).

Judicial discretion requires action in conformity with law on
facts and circumstances before the trial court after hearing
and consideration. Consequently, the court abuses its
discretion if, in resolving the issue for decision, it
misapplies the law or exercises its discretion in a manner
lacking reason. Similarly, the trial court abuses its
discretion if it does not follow legal procedure.

Miller v. Sacred Heart Hosp., 753 A.2d 829, 832 (Pa.Super. 2000)

(internal citations omitted). Our scope of review is plenary. Pappas v.

Asbel, 564 Pa. 407, 418, 768 A.2d 1089, 1095 (2001), cert. denied, 536

U.S. 938, 122 S.Ct. 2618, 153 L.Ed.2d 802 (2002). In reviewing a trial

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J-A03033-16

court’s grant of summary judgment,

[W]e apply the same standard as the trial court, reviewing
all the evidence of record to determine whether there
exists a genuine issue of material fact. We view the record
in the light most favorable to the non-moving party, and
all doubts as to the existence of a genuine issue of
material fact must be resolved against the moving party.
Only where there is no genuine issue as to any material
fact and it is clear that the moving party is entitled to a
judgment as a matter of law will summary judgment be
entered. All doubts as to the existence of a genuine issue
of a material fact must be resolved against the moving
party.

Motions for summary judgment necessarily and directly
implicate the plaintiff’s proof of the elements of [a] cause
of action. Summary judgment is proper if, after the
completion of discovery relevant to the motion, including
the production of expert reports, an adverse party who will
bear the burden of proof at trial has failed to produce
evidence of facts essential to the cause of action or
defense which in a jury trial would require the issues to be
submitted to a jury. In other words, whenever there is no
genuine issue of any material fact as to a necessary
element of the cause of action or defense, which could be
established by additional discovery or expert report and
the moving party is entitled to judgment as a matter of
law, summary judgment is appropriate. Thus, a record
that supports summary judgment either (1) shows the
material facts are undisputed or (2) contains insufficient
evidence of facts to make out a prima facie cause of action
or defense.

Upon appellate review, we are not bound by the trial
court’s conclusions of law, but may reach our own
conclusions.

Chenot v. A.P. Green Services, Inc., 895 A.2d 55, 61 (Pa.Super. 2006)

(internal citations and quotation marks omitted).

After a thorough review of the record, the briefs of the parties, the

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J-A03033-16

applicable law, and the well-reasoned opinion of the Honorable Ellen Ceisler,

we conclude Appellant’s issue merits no relief. The trial court opinion

comprehensively discusses and properly disposes of the question presented.

(See Trial Court Opinion, filed May 20, 2015, at 17-24) (finding: Appellant’s

claim that discovery rule tolled statute of limitations until Mr. Cooper’s

autopsy revealed exact nature of Mr. Cooper’s illness fails because perfect or

near-perfect diagnosis was not required to trigger statute of limitations;

likewise, lack of complete or exact diagnosis did not toll statute of limitations

for purposes of discovery rule; Appellant was aware, as early as September

25, 2003 (when Mr. Cooper told Appellant about cleanup of spill at work)

and no later than November 2, 2010 (when Appellant received letter about

Mr. Cooper’s illness and prognosis), that Mr. Cooper sustained serious injury

due to “occupational solvent exposure”; further, Appellant’s claim that

discovery rule should toll statute of limitation, because Appellees

“fraudulently” withheld critical documents, was undermined because (a)

Appellant knew as early as December 2005 that Appellee AWI was

withholding exposure documents in violation of Occupational Safety and

Health Act (“OSHA”), (b) Appellant learned in 2009 that Appellee Hay had

assessed Mr. Cooper in May 2004, and had failed to provide his notes to

Appellant during intervening time, and (c) between 2005 and 2010, no less

than eight doctors informed Appellant that Mr. Cooper suffered from work-

induced toxic encephalopathy and dementia; these facts establish that

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J-A03033-16

Appellant had actual or constructive notice between 2005 and 2010 that: (a)

Appellee AWI’s denial of Appellant’s request for Mr. Cooper’s exposure

records violated OSHA and prevented Appellant’s timely access to Mr.

Cooper’s exposure information, (b) Appellees hid from Appellant Dr. Hay’s

involvement with Mr. Cooper, and (c) Mr. Cooper’s progressively

deteriorating state was linked to 2003 chemical spill and other exposure to

chemicals at Appellee AWI’s plant; in light of Appellant’s notice of these

facts, November 2, 2010, was last possible date Appellant knew or should

have known, through exercise of due diligence, about Appellees’ tortious

conduct; pursuant to discovery rule, two-year statute of limitations began to

run on this date at the latest and required Appellant to file suit no later than

November 2, 2012; Appellant did not file present tort action until August 22,

2013, nearly ten months beyond applicable deadline; thus, Appellant’s

claims are time-barred, and court properly granted Appellees’ motions for

summary judgment).

We agree with the court’s decision but write separately to emphasize

the following points. First, the record discloses no dispute over whether Mr.

Copper suffered chronic solvent and chemical exposure and acute exposure

to toxic chemicals while working at Appellee AWI’s manufacturing plant.

Appellant’s fraud complaint does not allege that Appellee AWI denied the

direct connection between Mr. Cooper’s toxic exposure and his medical

diagnosis, deteriorating health, and death. Likewise, Appellant’s fraud

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J-A03033-16

complaint does not allege what additional information was needed for Mr.

Cooper’s diagnosis or how his diagnosis and treatment would have changed

or how the additional documents, on which the fraud claim rests, would have

altered the nature or cause of the workplace injury Mr. Cooper suffered. The

documents at issue purport to reveal additional information on the extent or

degree of Mr. Cooper’s exposure, which is not material to a statute of

limitations argument in the present context. Moreover, Appellant did not

assert that AWI intentionally exposed Mr. Cooper to the toxic solvents which

caused Mr. Cooper’s health problems. Instead, the intentional tort Appellant

asserted against Appellees centered on the alleged withholding of certain

documentation regarding the extent of Mr. Cooper’s chemical exposure,

although Appellant already knew about the exposure. In this respect, the

trial court’s analysis deserves to be directly quoted as follows:

In support of [the] effort to defeat the…summary
judgment motions, [Appellant] attempted to rebut
[Appellees’] statute of limitations argument by raising both
the discovery rule and the fraudulent concealment
doctrine, in essence maintaining that there are genuine
issues of material fact as to whether the filing window was
tolled, and whether their suit was thus initiated in a timely
fashion. First, [Appellant] claimed that it was not possible
to ascertain the precise nature of Mr. Cooper’s injuries
until he was autopsied at some point in 2014. Second,
[Appellant] argued that AWI and [Dr.] Hay conspired in a
series of [still ongoing] fraudulent acts, intentional
omissions, and deliberate [record] destruction, which
(depending on which of [Appellant’s] filings one happens to
be reading) prevented [Appellant] from learning of AWI’s
alleged duplicity until October 2011 or December 2011
and, independent of the federal preemption argument,
continues to toll the statute of limitations.

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J-A03033-16

Unfortunately, neither of these arguments provided a
sufficiently substantive counter to [Appellees’] requests for
relief. Regarding the former, actual notice of an injury via
a perfect, or nearly perfect, diagnosis is not required for a
relevant statute of limitations to run, and a lack thereof
does not, in itself, toll the period for filing suit; thus, the
fact that [Appellant] may not have known the exact nature
of Mr. Cooper’s malady until after his post-mortem
examination is irrelevant, especially when the Coopers
were aware as early as September 25, 2003 (i.e. the date
of the Top Foam spill), and no later than Dr. Martin’s
November 2, 1010 assessment letter to the Coopers’
attorney (which itself merely reinforced the diagnoses
offered by Drs. Chaudhry, Cho, Fochtman, Gold, Gur,
Newberg, and Thrasher), that Mr. Cooper had sustained a
serious injury due to “occupational solvent exposure.”46 As
to the latter, though the Coopers claimed that both AWI
and Dr. Hay fraudulently withheld (and continue to
withhold) critical documentation regarding Mr. Cooper’s
workplace exposure to chemicals, whatever merit this
argument may have is undermined by a triumvirate of
details: First, the Coopers requested these exposure
records as early as December 2005, only to be refused by
AWI, even though [OSHA] explicitly requires employers to
provide such documentation, upon request, to affected
employees; second, [Appellant] became aware in 2009
that Dr. Hay had assessed Mr. Cooper during a May 2004
office visit, allegedly doing so without her knowledge, and
had not provided either of the Coopers with his related
notes during the intervening time; third, between
November 17, 2007 and November 2, 2010, the Coopers
were informed by no less than eight separate doctors that
Mr. Cooper suffered from work-induced toxic
encephalopathy and dementia. Thus, even when viewing
the case record in the light most favorable to the Coopers,
it is evident that they gained actual or constructive notice,
at various points between late 2005 and late 2010, that:
(1.) AWI had violated [OSHA] by denying their
initial…requests for Mr. Cooper’s chemical exposure
history, and had therefore prevented the Coopers from
obtaining such information in a timely manner; (2.) Dr.
Hay’s involvement in this matter had been hidden from
[Appellant] for roughly five years after Mr. Cooper’s 2004

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J-A03033-16

office visit; and (3.) Mr. Cooper’s progressively
deteriorating state, on both a mental and physical level,
was inextricably linked to his participation in the Top Foam
spill cleanup, as well as to decades of chronic exposure to
solvents and other chemicals at the Facility. Accordingly,
this [c]ourt determined that there was no genuine issue of
material fact as to the latest possible date upon which the
Coopers knew, or should have known, each of these facts,
and thus be put on notice of Appellees’ allegedly fraudulent
and conspiratorial conduct: November 2, 2010 (i.e. the
date of Dr. Martin’s letter).
46
Moreover, …given the [Workers’ Compensation
Act’s] near-blanket prohibition against common law
actions based upon workplace injuries, the injuries
allegedly caused to Mr. Cooper by the Top Foam
spill, standing alone, could not form the foundation
of a permissible [common law tort] suit.

(Trial Court Opinion at 22-24) (most internal citations, footnotes, and

quotation marks omitted). The record supports the court’s analysis, which

we accept. Accordingly, we affirm on the basis of the trial court’s opinion

and our additional commentary.

Orders affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/15/2016

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i > ' • .,

Circulated 06/20/2016 01:51 PM

IN THE COURT OF COMMON PLEAS
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CIVIL TRIAL DIVISION

SANDRA COOPER, IN HER OWN RIGHT, SUPERIOR COURT
AND AS PLENARY GUARDIAN OF GENE M. : 632EDA2015
COOPER, and GENE M. COOPER 633 EDA2015
Plaintiffs-Appellants
COURT OF COMMON PLEAS
130802452
v.
ARMSTRONG WORLD INDUSTRIES, INC.
and DR. ALAN J. HAY, M.D.
Defendants-Appellants

OPINION /'
l
i'. : '
...., .·
~,:'.; ; 1

ELLEN CEISLER, J. DATE: May 20, 2015~;~,t , s

I. FACTS AND PROCEDURAL HISTORY
The instant appeals, filed by Plaintiffs-Appellants Sandra Cooper and Gene M. Cooper
("Mrs. Cooper," "Mr. Cooper," or, collectively, "The Coopers"), emanate from this Court's
orders, docketed on February 2, 2015, granting Defendants-Appellants Armstrong World
Industries, Inc. and Dr. Alan J. Hay's ("A WI" and "Dr. Hay," individually, and collectively
"Appellees") respective Motions for Summary Judgment. As will be discussed at length infra,
this Court respectfully maintains that the claims contained in the Coopers' suit are barred by the
relevant statute oflimitations, meaning that this Court properly granted summary judgment in
favor of both AWI and Dr. Hay, and that the Coopers' appeals should therefore be denied.

Cooper Elal Vs Armstrong Wond lndustnes -OPFLO

1
H . 1111111 IIIH 111111
13080245200158
 A WI, a flooring and ceiling manufacturer located in Lancaster, PA, 1 hired Mr. Cooper ih-

April1974, initially assigning him to warehouse operations in its Lancaster facility ("Facility").2

.........
AWI's Motion for Summary Judgment, Ex. D Part I at 17 ("A WI MSJ"). Subsequently, Mr .
Cooper took an extended leave of absence starting in 1975, during which he served in the Armed
Forces and, in addition, married Mrs. Cooper. Id. at 17, 25. He returned to AWI in October 1979,
spending the bulk of the ensuing decades working in various capacities throughout the Facility,3
and eventually became a lead product inspector in A WI's "Corlon" department. Id. at 15, 17, 19.
As a consequence of his time working at AWI, Mr. Cooper was regularly exposed to industrial
cleaning solvents of varying toxicity, as well as certain inks that were used in the flooring
manufacturing process. Id. at 12-15, 22.

While this low-level exposure may have had, in the aggregate, some negative impact on
Mr. Cooper, see A WI MSJ, Ex. D Part I at 27 (Mrs. Cooper stating that, starting at some point in
2000, Mr. Cooper began to be regularly, and inexplicably, irritable), the true tipping point was in
September 2003, when a major chemical spill occurred at the Facility. On September 25, 2003, a
valve on a tank located within the Facility's Building 94, on the #6 Coating Line of AWi's
rotogravure division, was improperly left open by an A WI employee, allowing roughly 500 or
more gallons of"Top Foam"4 to spill out into the production area and the basement below. Id. at
31-32; Amended Complaint at 5. Though Mr. Cooper was working in A WI's Codon department,
at Table 10 in the Facility's Building 200, this spill was of a magnitude necessitating an "all

I
See generally Home, AWI Licensing Company, 2015, http://www.armstrong.com/ (AWI's website, which shows
AWI's location, as well as the nature of its business operations).
2
At one point, AWI's Lancaster operations contained "five different production areas," which sprawled over an area
110 acres in size that contained 220 buildings; however, due to downsizing and related layoffs, all that remains
today is AWI's rotogravure department, which is responsible for printing certain kinds of flooring products.~
Motion for Summary Judgment, Ex. D Part I at 17.
3
Mr. Cooper graduated from Millersville College (now Millersville University) in 1989, earning a bachelor's degree
in business and finance, and later "took courses [though Villanova University] toward[s] insurance certification
[and] selling securities," though he did not obtain enough credits to sit for the Series 7 licensing exam. AWI's
Motion for Summary Judgment, Ex. D Part I at 25-26.
4
According to Harold Zerger, an AWI employee, Top Foam "is the gel that [AWI coating department employees]
put on the top layer of [AWI] flooring [and is] made out of... paste, plastisols and sawdust," as well as an industrial
solvent known as "Solvesso" and arsenic. AWI's Motion for Summary Judgment, Ex. D Part I at 32-33; see also id.
at 23 (description ofSolvesso's ingredients, as well as its potential health hazards). AWi creates a "finished
linoleum flooring product" by soaking felt with Top Foam, and then letting the felt dry. Amended Complaint at 5.

2
hands on deck" response. See AWI MSJ, Ex. D Part I at 24-25 (testimony from Joseph
Rumberger, President" of United Steelworkers Local 285 and A WI employee who worked with
Mr. Cooper); id. at 32-33 (testimony from Harold Zorger, a form.er AWi employee).
Accordingly, Mr. Cooper was pulled from his normal post and was reassigned to the Top Foam
spill mitigation endeavor in Building 94's basement. Id. at 32-33; Amended Complaint at 5.5
Despite the fact that the basement area was a confined space with nonexistent ventilation, A WI
did not give Mr. Cooper or his co-workers proper protective gear, nor did it provide them with
post-remediation decontamination. A WI MSJ, Ex. D Part I at 33 (testimony from Harold
Zorger); id at 37 (testimony from David Clark, an AWi employee). These efforts "took days to
accomplish," and were ultimately completed only through the assistance of an outside contractor.
Id. at 33-34.

Mr. Cooper returned home after completing his role in the clean-up, at which point it was
transparently clear to his wife that he was in great distress. According to Mrs. Cooper, her
husband "walked in the door and it was like a barrage. He was screaming. He was swearing. He
had tears running down his face, his eyes were watering and he was coughing. I don't even know
how to explain the cough. I've never heard anybody cough like that. .. I asked him what was the
matter." Id. at 27. Though it seems that Mr. Cooper's cough rendered him nearly incapable of
speech, he was able to communicate to his wife that he and his coworkers had dealt with a major
spill of some sort, and that he was not happy with having been required to assist with the
cleaning. Id.; Cooper Affidavit at 2. 6 More than a week passed without any real improvement,
leading Mr. Cooper to seek treatment from Dr. Gary Gehman, his personal physician, who
prescribed a 10-day course of antibiotics in order to treat what Dr. Gehman apparently believed
was some sort of sinus infection. A WI MSJ, Ex. D Part I at 27; Cooper Affidavit at 2. When this

5
While Harold Zorger testified that he only saw Mr. Cooper assist with the clean-up in Building 94's basement on
September 26, 2003, Mrs. Cooper claims that Mr. Cooper was also involved on September 25, 2003. See A WI MSJ,
Ex. D Part I at 33-34; Coopers' Response to A WI MSJ. Mrs. Cooper Affidavit at 2-3 ("Cooper Affidavit").
6
During her husband's workers' compensation case, Mrs. Cooper testified that she could not remember the exact
date that this occurred, and could only narrow it down to the last week of September 2003. AWI MSJ, Ex. D Part I
at 27; however, in an affidavit dated December 30, 2014, Mrs. Cooper claimed that her husband went to work on
September 25, 2003 and returned later that day with an "an uncontrolled cough [which prevented him from speaking
clearly], a splitting headache, 'burning sinuses."' Cooper Affidavit at 2. This later recollection is at odds with Mr.
Zorger's testimony, given that Mr. Zorger participated in the clean-up on both days, but only saw Mr. Cooper in
Building 94's basement on September 26, 2003.

3
did not solve the problem, Dr. Gehman gave Mr. Cooper another round of antibiotics, though it
is unclear whether this had any effect, positive or negative, on Mr. Cooper's physical well-being.
AWI MSJ, Ex. D Part I at 27.

As the weeks and months rolled past, it became increasingly evident that the malady
afflicting Mr. Cooper was far more serious than a simple infection. Mrs. Cooper, as well as their
son and daughter, began to notice that, on occasion, Mr. Cooper would "bizarre[ly] [r]eferO to
one of the children as the wrong gender or something. It was really odd. It was almost like you
weren't hearing the right thing." Id. Mr. Cooper's cognitive problems continued to worsen and,
by November 2003, he was struggling with identifying individuals and "using proper names." As
recalled by Mrs. Cooper, "[h]e would try to explain something and say well, they went there and
they did that. He didn't know who it was; he didn't know where they going. And we just never
heard this before. The kids commented on it. Even our friends commented on it too." Id. These
issues subsequently bled over into Mr. Cooper's work life, and he began to have trouble keeping
track of his schedule at AWi. Id. at 27-28. In response, Dr. Gehman gave Mr. Cooper a
prescription for Paxil, an antidepressant, and scheduled him for an MRI; however, though Paxil
seemed to improve Mr. Cooper's demeanor, it did nothing to help his memory, something
remarked upon by his coworkers, who could not help but notice that Mr. Cooper was
consistently confused and forgetful, even in situations where he was only undertaking routine
tasks. See, e.g., A WI MSJ, Ex. D Part I at 21-22 (testimony from Dennis Keller, a former A WI
employee); id. at 34-35 (testimony from Harold Zorger); id. at 45 (testimony from Matthew
Furman, a former AWI employee); id. at 47-48 (testimony from Gary Benedick, a former A WI
employee). These cognitive lapses ultimately caused Mr. Cooper to have a series of unauthorized
absences from work, prompting AWi to move towards disciplining him in late April 2004. See
Coopers' Supplemental Brief in Support of Response to Defendant Alan J. Hay. M.D.'s Motion
for Summary Judgment at 16 ("Supplemental Brief #1 ");id.at Ex. 5 (Mr. Cooper's AWI
attendance report covering April 23, 2003 through April 23, 2004); id. at Ex. 44 (letter, and
attachments, from AWi's attorney to Workers' Compensation Judge Tina Rago).7

7
The Coopers claim, in Supplemental Brief#l, that AWI tried to fire Mr. Cooper in January 2004; however, this
averment clearly does not square with Mr. Cooper's attendance report, or the exhibits attached to the AWI attorney's
letter to the Honorable Workers' Compensation Judge Tina Rago, which show that the first unauthorized absence for
4
 Before A WI could discipline Mr. Cooper, however, Joseph Rumberger, his co-worker
and the President of United Steelworkers Local 285, intervened and arranged to have him looked
at by Dr. Alan Hay, M.D., of Lancaster General Hospital's Department of Occupational
Medicine. Supplemental Brief #1 at 17;8 id. at Ex. 7. According to Dr. Hay, Mr. Cooper's
appointment was scheduled for at least four separate occasions, but Mr. Cooper repeatedly failed
to appear or to notify Dr. Hay that he would not be in attendance. Id. at Ex. 7. Because of this,
Matthew Fuhrman, Mr. Cooper's supervisor at A WI, had to accompany him during his May 13,
2004 visit to Dr. Hay's office. Id.; see also AWI MSJ, Ex. D Part I at 43-44 (noting Fuhrman's
job title at AWi in 2003 and 2004). Dr. Hay evaluated Mr. Cooper on that date, noting that he
"appear[ ed] to have difficulty processing information and coming up with appropriate answers to
specific questions," and opining that Mr. Cooper "definitely need[ed] a psychological assessment
to try and identify the problem and [get] a diagnosis established." Supplemental Brief #1 at Ex.
7. Dr. Hay found that Mr. Cooper had "a general awareness that things are not right at work, that
apparently when he is not doing something right that he has been trained to do[,] others get very
excited[. Mr. Cooper] does not quite understand why they get all upset and excited[,] except that
he is aware that this is not right and that he is the focus of something being wrong." Id. With
regard to treatment, Dr. Hay "got permission verbally from [Mr. Cooper] to talk with Dr.
Gehman ... with the purpose of trying to have [Dr. Gehman] refer [Mr. Cooper] to a specialist for
further evaluation and testing." Id. Dr. Hay shared the contents of this plan with Mr. Fuhrman,
who was then tasked with bringing Mr. Cooper back to the Facility. ld.9 Thereafter, at some

which Mr. Cooper was docked "points" did not occur until January 27, 2004, and state that discharge would not
happen until after an employee had accrued more than 10 such points during a running 12-month period.
8
The Coopers describe Dr. Hay as A Wl's "panel physician." Supplemental Brief#l at 17; however, it is unclear
what the Coopers mean to suggest by using such a designation (ex. an agency or employee relationship, an
independent contracting arrangement, etc.), nor did the Coopers provide any substantive evidence to flesh out Dr.
Hay's putative title.
9
Mrs. Cooper claims that she did not learn of her husband's visit to Dr. Hay, or about Dr. Hay's communications
with Dr. Gehman until some point in 2009. CoQPer Affidavit at 4-5; see also AWI MSJ, Ex. J Part I at 70- 71
(deposition testimony from Mrs. Cooper); A WI MSJ, Ex. J Part II at 9-10 (same). This lack of knowledge seems, in
part, to be due to Mr. Cooper's cognitive issues actively impeding his ability to communicate with his wife. See Dr.
Hay's Motion for Summary Judmens Ex. 1 at 8-9 ("Hay MSJ") ("[Dr. Hay's Attorney:] You were not aware
before May 13 of2004 that your husband was seen-had an appointment to see Dr. Hay, correct? [Mrs. Cooper:]
No, I didn't know. Q: And you didn't know on that day that your husband saw a doctor? A: Not till [sic] I think he
came home and said doctor something, but like I said, he was very hard to understand. I don't think I really had any
idea what had happened, you know, he couldn't really describe it, no.").

5
point in late May, AWi placed Mr. Cooper on disability. A WI MSJ, Ex. D Part I at 19 (testimony
from Robert Mattern, an AWI employee); id. at 28 (testimony from Mrs. Cooper). Subsequently,
Dr. Hay spoke to Dr. Gehman, informing him of Dr. Hay's concerns about Mr. Cooper.
Supplemental Brief#l at Ex. 7. Dr. Gehman responded by referring Mr. Cooper to Dr. Ed
Purzycki, a neuropsychologist; in contrast to his meeting with Dr. Hay, there is no doubt that
Mrs. Cooper contemporaneously knew of, and accompanied, Mr. Cooper to his ensuing
appointment with Dr. Purzycki. A WI MSJ, Ex. D Part I at 28 (testimony from Mrs. Cooper)."

On June 8, 2004, after being contacted by a disquieted Mr. Fuhrman, Dr. Hay again
reached out to Dr. Gehman, in order to get an update regarding Mr. Cooper's treatment.
Supplemental Brief#l at Ex. 7. Dr. Gehman allegedly told Dr. Hay that he was still waiting to
hear back from Dr. Purzycki, but that such a delay was not unexpected, given that the necessary
neuropsychological tests generally took a decent amount of time to both conduct and interpret.
Id. 11 Dr. Hay then called Mr. Cooper, who allegedly confirmed that he had indeed completed the
aforementioned testing, and that he was frustrated with his current situation. Id. Finally, Dr. Hay
got back in touch with Mr. Fuhrman, expressing his continued worry regarding Mr. Cooper's
mental well-being, as well as his belief that, given Mr. Cooper's state, it would be prudent for
Mr. Fuhrman or one of his associates to actively assist Mr. Cooper and his family, to ensure that
all of the necessary medical leave paperwork was properly completed and filed. Id. Though Dr.
Hay promised Mr. Fuhrman that he would be in touch once he had received additional
information regarding Mr. Cooper's prognosis, id., the case record is devoid of any other
substantive evidence regarding Dr. Hay's involvement with Mr. Cooper, and it appears that Dr.
Hay did not take part in evaluating or treating Mr. Cooper after June 8, 2004.

What followed throughout the ensuing years was a series of additional referrals and
examinations, as numerous medical professionals in both Lancaster and Philadelphia tried,

10
It is unclear exactly when this appointment with Dr. Purzycki occurred; however, given Dr. Hay's notes, and the
lack of evidence to the contrary, it is likely that it happened between May 13, 2004 (the date of Mr. Cooper's
appointment with Dr. Hay) and June 8, 2004 (when Dr. Hay reached out to Dr. Gehman for an update). See
Suwlemental Brief#l at Ex. 7 (note dated June 8, 2004 and authored by Dr. Hay).
11
Inexplicably, neither the Coopers nor the Appellees saw fit to provide this Court with evidence or testimony from
Dr. Gehman, i.e. the other party to this conversation.
6
without success, to pinpoint the precise etiology of (and appropriately treat) Mr. Cooper's
progressively deteriorating mental condition. See Hay MSJ, Ex. 7 (letter from Dr. V.
Mangeshkumar, M.D., to Dr. Gehman); A WI MSJ, Ex. D Part I at 28-29 (testimony from Mrs.
Cooper); SuRPlemental Brief#!, Ex. 6 (Dr. Paul A. Kettl, M.D. stating that at least five doctors
had "been unable to fully elucidate the cause of [Mr. Cooper's] dementia."); Cooper Affidavit at
6- 7. These efforts were complicated by A WI, which (according to the Coopers) refused to
release critical information regarding Mr. Cooper's chemical exposure history, purportedly
stonewalling their lawyer's repeated requests for such documentation in 2005 and 2006, 12 and
allegedly caused Mr. Cooper's employer-provided healthcare plan to be terminated without his
consent on June 8, 2005. See Coopers' Supplemental Brief in Support of Response to Defendant
AWi's Motion for Summary Judgment at 8-11, Ex. 11 ("Supplemental Brief#2"); Cooper
Affidavit at 6-7.13 Even so, Mrs. Cooper maintained the belief that her husband's affliction was a
direct result of his time with AWi, stating that she had "always suspected some form of toxic
exposure from his workplace[,] because of the sudden onset of his symptoms in the fall of2003."
Hay MSJ, Ex. 8 (letter from Mrs. Cooper to Dr. Gehman); see also id., Ex. 7 (letter from Dr.
Mangeshkumar to Dr. Gehman).

Indeed, Mrs. Cooper had, by this point, recognized that her husband was irreparably
injured and, accordingly, took steps to protect his long-term physical well-being, as well as their
collective financial and legal interests. According to his wife, Mr. Cooper
began to be suspicious of the neighbors he kept talking about these people ... I finally
realized that he was hearing voices and having [auditory] hallucinations[,] because he
kept saying the people were coming in the house ... He was aggressive with me on one
occasion. He thought I was keeping something from him. He thought people were living
in our house [and that they] were stealing the electricity ... [D]uring the electricity
episode he grabbed me by the throat and pushed me against the wall.

12
The Coopers claim that AWI's attorney, Jeffrey Sidebottom, Esq., told their lawyer in December 2005 that
"unless there's an active Worker's Compensation claim, [AWI will] not produce any [of Mr. Cooper's workplace
chemical] exposure information." SupplementalBrief #2 at 9. Assuming that Mr. Sidebottom made this statement,
AWI's refusal to release Mr. Cooper's exposure records prior to the Cooper's initiation of legal action flies directly
in the face of Occupational Safety and Health Act's ("OSH Act" or "Act") plain language. See 29 C.F.R. §
19l0.1020(e)-(D (discussing employers' duty under the Act to provide employees with workplace chemical
exposure and related medical records, and to do so in a timely fashion after such information has been requested by
either an affectedemployee or his designated representative).
13
According to Mrs. Cooper, this terminationdid not affect Mr. Cooper's receipt of disability or Medicare benefits.
See AWI MSJ, Ex. D Part I at 30.

7
AWI MSJ, Ex. D Part I at 29. This prompted Mrs. Cooper to seek appointment as her husband's
legal guardian, a request which was granted by the Honorable Jay J. Hoberg of the Court of
Common Pleas, Lancaster County on June 7, 2006, who deemed Mr. Cooper to be "a totally
incapacitated person." Supplemental Brief# 1 at 11, Ex. 15. Mrs. Cooper then had her husband
admitted to Magnolias of Lancaster, "a secure, adult assisted-living residence," where his decline
continued, unabated, despite receiving full-time care from medical professionals. See id.; AWi
MSJ, Ex. D Part I at 29-30.

Mrs. Cooper coupled these movements with legal action against AWI on behalf of her
14
husband. On November 17, 2007, Mr. Cooper was examined by Dr. Stephen Gold, M.D., who
diagnosed Mr. Cooper as suffering from work-related "encephalopathy with subsequent
dementia." Supplemental Brief# 1, Ex. 16. Having now been provided with a medical opinion
linking Mr. Cooper's illness to his time at AWI, Mrs. Cooper responded by filing a worker's
compensation claim petition ("Petition") on December 1 7, 2007, asserting therein that her
husband had been harmed during the course of his employment through "toxic overexposure"
that had caused "encephalopathy with dementia." A WI MSJ, Ex. A. 15

As the claim process moved forward before the Honorable Workers' Compensation
Judge Tina Rago, the Coopers reiterated their request to A WI, on multiple occasions, that it
release historical data regarding Mr. Cooper's exposure to chemicals in the workplace,
additionally asking for numerous material safety data sheets ("MSDS"). 16 In addition, they asked
for detailed documentation regarding Mr. Cooper's work duties, as well as A WI's Facility safety

14
Dr. Gold worked for Prudential Financial, who was Mr. Cooper's disability insurance carrier. See Supplemental
Brief#l at 11, Ex. 16.

is This Petition was amended on February 13, 2008, revising the initial cause-and-effect statement to claim that Mr.
Cooper's "chronic exposure to hydrocarbon distillates and halogenated hydrocarbons [had resulted in] irreversible
encephalopathy." AWI MSJ, Ex. B. On September 20, 2008, the Petition was modified a second time, to reflect that
Mr. Cooper had recently been diagnosed with work-related Parkinson's Disease. I.9.,,, Ex. C.
16
Now called a Safety Data Sheet, an MSDS must be promulgated by a chemical's "manufacturer, distributor, or
importer for each hazardous chemical to downstream users [in order] to communicate information on these
hazards [and] includes information such as the properties of each chemical; the physical, health, and
envirorunental health hazards; protective measures; and safety precautions for handling, storing, and transporting the
chemical." OSHA Brief-Hazard Communication Standard: Safety Data Sheem, Occupational Safety & Health
Administration, February 2012, https://www .osha.gov/Publications/OSHA3 514.html.

8
and maintenance procedures. See Supplemental Brief#l, Exs. 20-22. Based off of the
substantive evidence provided to this Court, it appears that the Coopers did receive some, or
most, of the sought-after information. See id., Exs. 23-30, 32 (communications between Coopers'
counsel and AWi's counsel); however, on November 13, 2008, AWi notified the Coopers that
"some of the previous [chemical] exposure records had been inadvertently lost or destroyed,"
something which allegedly had not been discovered prior to the Coopers' discovery requests. Id.,
Ex. 32; see also id., Ex. 31 (letter from Brent Davis to Jeffrey Sidebottom, Esq., A WI's lawyer).
A WI attempted to remedy this error by reconstructing these records to some degree, sending the
fruits of these efforts to the Coopers in lieu of the originals, and continuing to search for
additional, relevant information. Id., Ex. 32, 34-37.17

This claim of irreversible document destruction was later thrown into doubt in late
January 2011 after Paul Heisey, an AWi employee, discovered password-protected chemical
exposure records pertaining to Mr. Cooper on a networked computer hard drive at A Wl.18
Supplemental Brief#l, Ex. 39 at 42-45. The parties disputed the import of these newly-
unearthed records, as the Coopers claimed that their existence incontrovertibly revealed that
A WI had been withholding crucial information, while A WI claimed that they were simply
duplicative of other material that had already been provided to the Coopers. Id. at 48-51, 54-5 5.
Unfortunately, this debate was never ultimately resolved, as Judge Rago ended discovery without
requiring A WI to unlock these files, meaning that the precise nature of their contents remained
unexposed. Sup,plemental Brief# 1 at 21.

Despite these issues, and the very real possibility that A WI had not been entirely
forthcoming or transparent, this did not stop Mrs. Cooper from learning of Dr. Hay's post-spill
evaluation of Mr. Cooper. At an unspecified point during 2009, Mrs. Cooper discovered that Dr.
Hay had taken part in treating her husband at the behest of his employer and, accordingly,
obtained Dr. Hay's 2004 examination and follow-up notes. See Cooper Affidavit at 5. Mrs.

17
The parties failed to provide this Court with any of the reconstituted records. As such, this Court is unable to
opine as to the records' substance or sufficiency.

18 Mr. Heisey stated that he discovered the files on "the Tuesday prior to [his] retirement." Supplemental Brief#!,

Ex. 39 at 44-45. As Mr. Heisey retired on February 1, 2008, the previous Tuesday would be January 29, 2008. Id.

9
Cooper found these notes to be of little substantive value, as they "did not mention a diagnosis o,
cause of [her] husband's mental disability or any mention of brain damage or [her] husband's
toxic exposures at work," id., and ultimately came to believe that Dr. Hay had, in concert with
AWi, purposefully attempted to conceal the source and nature of Mr. Cooper's malady. See AWi
MSJ, Ex. J Part II at 8-19 (testimony from Mrs. Cooper regarding suspicions she had about the
conduct of Dr. Hay and AWi).

Nor were the Coopers prevented from finally understanding, to some degree of precision,
Mr. Cooper's illness. In February 2008, Dr. Ruben Gur, Ph.D.19 and his team at the University of
Pennsylvania determined, via differential diagnosis, that Mr. Cooper suffered from
"trichloroethylene'